Opinion
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Stephen Shaiken, Esq., Law Offices of Stephen Shaiken, San Francisco, CA, for Petitioner.
Ronald E. LeFevre, Chief Counsel, Office of the District Counsel, Department of Homeland Security, San Francisco, CA, Francis W. Fraser, Esq., Greg D. Mack, Esq., DOJ--U.S. Department of Justice, Washington, DC, for Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals.
Before KLEINFELD, TASHIMA, and THOMAS, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Antonio Gonzalez-Gutierrez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals' summary affirmance without opinion of an Immigration
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Judge's denial of his motion to reopen his proceedings and rescind his in absentia removal order. We have jurisdiction pursuant to 8 U.S.C. § 1252. Reviewing for abuse of discretion, see Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.2000), we deny the petition for review.
While exceptional circumstances are established "if an alien fails to appear because of his actual and reasonable reliance on counsel's erroneous advice," Monjaraz-Munoz v. INS, 327 F.3d 892, 896 (9th Cir.), as amended by 339 F.3d 1012 (9th Cir.2003) (order), Gonzalez-Gutierrez does not claim to have received such advice. Nor has he presented a colorable non-discretionary claim to relief. See Valencia-Fragoso v. INS, 321 F.3d 1204, 1205-06 (9th Cir.2003) (per curiam) (distinguishing cases in which the government conceded that petitioners would not have been deported if their hearings had been held). In this context, Gonzalez-Gutierrez's misunderstanding of counsel's instructions, combined with his faulty answering machine, does not meet the required statutory threshold of "circumstances (such as serious illness of the alien ..., but not including less compelling circumstances) beyond the control of the alien." 8 U.S.C. § 1229a(e)(1)
PETITION FOR REVIEW DENIED.